Ivanka's New Con Law Rules Flashcards
(26 cards)
What are the power’s under Article 1?
Under Article 1 of the constitution, congress has the power to tax to raise revenue, spend for the general welfare, and regulate interstate commerce/ commerce with foreign nations.
What are Congress’s spending powers?
Congress my spend to achieve any constitutional purpose to promote the general welfare.
Congress may spend/apportion different amounts to certain states.
Federal Taxes must be
uniform among the states.
What are Congress’ appointment powers?
Congress may establish appointment powers in the president, courts, or heads of departments.
Congress can place conditional grants on money given to the states if:
(1) conditions are clear, (2) relate to the purpose of the program, and (3) are not unduly coercive.
What are Congress’ powers with respect to federal courts and the supreme court?
Congress may create inferior federal courts and change jurisdictional limits of original and appellate courts. Congress may NOT restrict or increase the supreme court’s jurisdiction.
Under Article 2,
the executive power is vested in the President.
Can Congress Subpoena the president’s personal records?
Yes. If it advances a legitimate legislative purpose.
The president has the power to:
Serve as commander in chief
Grant pardons of federal crimes.
Make treaties - WITH CONSENT OF CONGRESS ⅔ consent of senate.
Broad powers to enter into executive agreements with foreign states - no senate consent required.
Appoint Article 3 judges
Removed by impeachment - majority of house votes, ⅔ of senate votes
Enforce laws or appoint members to enforce laws
What is required for a president to create a treaty?
2/3 of Senate must consent
What is required for a president to void a treaty?
Nothing. A president may void a treaty under his broad foreign relations power.
What prevails if a treaty conflicts with:
state law
federal law
constitution
treaty prevails
most recent prevails
constitution prevails
Under Article 3,
the Supreme Court has original jurisdiction over (1) all cases involving ambassadors, public consults, ministers, and (2) all cases in which a state is a party.
What is the Independent State Law Grounds exception?
The Supreme Court will not hear a case from state court if it was decided on independent state grounds, meaning the state court decided the law is invalid under state law, not federal law. The Supreme Court may hear a case from state court on appeal if the decision was based on federal grounds. If there are state issues and federal issues, the Court may decide federal issues, but cannot rule on the state law issues.
When can the Supreme Court grant Certiorari?
if there is a case from the highest state court that questions the constitutionality of a state statute.
Under the 1st Amendment,
Congress shall make no laws establishing a religion or prohibiting the exercise of religion, shall make no laws abridging the freedom of speech or the press, or freedom of association. Further, First Amendment rights are considered fundamental rights and government regulation will be subject to strict scrutiny. The government will have to prove the regulation is necessary to a compelling government interest.
Defamation
A statement is defamatory if it harms the plaintiff’s reputation, lowers them in the estimation of the community, or deters others from associating with them. The plaintiff must show the statement was of and concerning him and must prove harm. Defamation can be oral, slander, or written, libel.
Libel of a Public Figure
Under the First Amendment, a plaintiff who is a public official or public figure must prove that the defendant acted with actual malice in making a defamatory statement. Actual malice is proved by showing that the defendant either knew the statement was false, or acted with reckless disregard as to the falsity of the statement, that is that the defendant consciously disregarded a high probability that the statement was false.
Damages are presumed.
Freedom of Speech
The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment and state action is generally required for a plaintiff to sue under the First Amendment. Further, laws regulating speech must be narrowly tailored and need to be achieved by the least restrictive means possible.
Content based regulations
If the regulation of speech is content based (viewpoint), the government must prove that the regulation is necessary to serve a compelling government interest, that it is narrowly tailored, and the least restrictive means were used. Strict Scrutiny
Content Neutral Regulations on Speech
If the regulation of speech is content neutral (conduct based), the government may regulate the time, place, and manner if the government can show that the regulation is narrowly tailored, to achieve an important government interest, and that alternate channels of communication are left open. Intermediate Scrutiny
Requirements for the government to regulate symbolic speech?
The government may regulate symbolic speech if the regulation is narrowly tailored to serve an important governmental interest and is unrelated to the suppression of the speech.
What type of speech does the 1st Amendment NOT protect?
(1) speech that incites a clear and present danger, (2) fighting words, (3) true threats or words as conduct (defamation, harassment), or (4) obscenity. Laws regulating unprotected speech need to pass rational basis scrutiny, that is the law will be upheld if it is rationally related to a legitimate government interest.
Elements for Obscenity
Speech is obscene if it appeals to the prurient interest in sex (community standard), depicts or describes sex in a patently offensive way, or lacks serious literary, artistic, political, or scientific value (national standard).
